IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 01-51014
                          Conference Calendar


UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

FERNANDO MALLEN-DE LUNA,
also known as Fernando Mallen-Ulna,
also known as Tomas Diaz-Salais,

                                           Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                       USDC No. SA-01-CR-308-ALL
                          --------------------
                             April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Fernando Mallen-De Luna appeals the sentence imposed

following his guilty plea conviction of being found in the United

States after deportation in violation of 8 U.S.C. § 1326.       He

contends that the sentence is invalid because it exceeds the

two-year maximum term of imprisonment prescribed in 8 U.S.C.

§ 1326(a).     Mallen-De Luna complains that his sentence was

improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on

his prior deportation following an aggravated felony conviction.


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                          No. 01-51014
                                -2-

He argues that the sentencing provision violates the Due Process

Clause.   Alternatively, Mallen-De Luna contends that 8 U.S.C.

§ 1326(a) and 8 U.S.C. § 1326(b)(2) define separate offenses.     He

argues that the aggravated felony conviction that resulted in his

increased sentence was an element of the offense under 8 U.S.C.

§ 1326(b)(2) that should have been alleged in his indictment.

     In Almendarez-Torres v. United States, 

, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses.   The Court further held that the sentencing

provisions do not violate the Due Process Clause.    

Mallen-De Luna acknowledges that his arguments are foreclosed by

Almendarez-Torres, but asserts that the decision has been cast

into doubt by Apprendi v. New Jersey, 

, 490 (2000).

He seeks to preserve his arguments for further review.

     Apprendi did not overrule Almendarez-Torres.    See 

; United States v. Dabeit, 

, 984

(5th Cir. 2000), cert. denied, 

(2001).     This court

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”    

(internal quotation marks and citation omitted).    The judgment of

the district court is AFFIRMED.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required.    The motion is GRANTED.

     AFFIRMED; MOTION GRANTED.